On Filibusters

26/01/2011

The Coalition government’s Parliamentary Voting System and Constituencies Bill has hit somewhat of an impasse in the House of Lords. Several marathon debate sessions, one lasting over 21 hours, during which various peers refused to “give way” (interrupt their speech to allow another peer to ask a question or comment), while others discussed such gripping topics as prime numbers, have occurred, and despite rumours of deals being reached behind the scene, it doesn’t look as if the bill will be passed by the Lords any time soon.

The bill deals with three related, yet separate, issues: 1) the proposed May referendum on the Alternative Vote, 2) constituency boundaries reviews, making them more frequent and also changing existing constituencies’ boundaries to make constituencies more equal in size, and 3) reducing the number of MPs (and thus constituencies) from the current 650 to 600. The problem is that for the referendum on AV to take place, the bill has to receive royal assent by mid February.

The Lords are mostly concerned with the constituency boundaries aspects of the bill. They’ve proposed to the Government to separate the referendum from the rest of the bill, thus allowing that part of the bill to be passed and receive Royal Assent in ample time to meet the required deadline. The Government, however has refused.

This has generated a fair bit of debate in the UK about the role of the House of Lords, particularly given that it is an unelected body. The Lords’ normal role is that of a revising chamber. It doesn’t normally seek to obstruct government legislation, but simply to give government bills detailed scrutiny and perhaps even propose certain revisions in the form of amendments. This is particularly important when certain bills are fast-tracked through the Commons via the use of various motions that curtail how much debate occurs – including at the committee stage. This was certainly the case for the Voting System and Constituencies Bill.

The Lords are normally governed by the Salisbury Convention – wherein they will not obstruct the passage of any bill that is based on pledge contained in the governing party’s manifesto. However, there was no Coalition manifesto, thus many argue that the Salisbury Convention does not apply in this case. The problem for the Lords, however, is that they’re beginning to act like an elected chamber in their efforts to obstruct a piece of government legislation. This is prompting some calls for the need to move to a fully elected House of Lords, but others warn that if the Lords were an elected body, this sort of behaviour would only become more common.

Filibusters may be more familiar to some in the context of US politics, but they aren’t completely unheard of occurrences in parliamentary systems.

The Standing Orders of the UK House of Commons do not establish any formal time limits for debates or for how long a member may speak, thus making it easier for members of a party to hijack proceedings with long speeches. In the House of Commons, however, the government will normally move a “guillotine” motion – what in Canada is called a time allocation motion – to limit the duration of a debate. The House can also put an immediate end to debate by passing a motion to invoke the Closure. The Speaker is allowed to deny the motion if he or she believes that it infringes upon the rights of the minority. Unlike the House of Commons, however, the House of Lords has nothing corresponding to the guillotine therefore there is no effective machinery for curtailing debate, which is why the suggestions that a guillotine motion might be introduced in the Lords is raising all sorts of eyebrows. To quote (the rather prone to hyperbole) Labour Lord Toby Harris:

So rumours are now swirling around that Thomas Galloway Dunlop du Roy de Blicquy Galbraith, Lord Strathclyde, the Leader of the House, has started threatening that he will table a ‘guillotine’ motion to cut off consideration of the Bill.

This would be unprecedented. It has NEVER been done before.

And as the whole point of the House of Lords is that it takes the time to scrutinise legislation properly, such a motion would be a constitutional outrage.

So not content with appointing dozens of new Conservative and LibDem place people to pack the Government benches, the Conservative Coalition is now contemplating playing fast and loose with the Constitution itself, so as to get through their Bill to change the composition of the House of Commons.

Is Lord Strathclyde trying to win the Robert Mugabe Award for Constitutional Innovation?

Australia and New Zealand both have rules in place in their Standing Orders that make a filibuster practically impossible, though they do occur on occasion, such as in 2009 in New Zealand.

This is also the case in the Canadian House of Commons, where filibusters are quite rare. At the provincial level, however, there were two notable filibusters that occurred in the Province of Ontario. On May 6th, 1991, when the New Democratic Party formed the government, Mike Harris, leader of the Progressive Conservative Party, introduced a bill whose title included the name of every lake and river in the province. Reading the bill into the record took the entire sessional day until adjournment at 6:00 p.m., thereby preventing the Government from proceeding with Orders of the Day. Shortly after that, the Standing Orders were amended by the Government so to limit the time period given for Introduction of Bills and, at 4:00 p.m., if the House has not commenced Orders of the Day, the Speaker interrupts the proceedings and calls Orders of the Day.

A few years later, in 1997, the PCs formed the government and found themselves the subject of a filibuster. The opposition NDP and the Liberal Party teamed up to stall passage of a government bill to amalgamate the City of Toronto. Both parties introduced thousands of amendments to the bills. The NDP introduced 11,500 amendments to the megacity bill; each amendment would name a street in the proposed city, and provide that public hearings be held into the megacity with residents of the street invited to participate. The Liberals also joined the filibuster with a smaller series of amendments; a typical Liberal amendment would give a historical designation to a named street. The NDP then added another series of over 700 amendments, each proposing a different date for the bill to come into force. The filibuster began on April 2, 1997 and occupied the legislature non-stop, day and night, until if finally ended on April 11.

The result of this were more changes to the Standing Orders that, among other things, included time limits on members’ speeches in the House, limits on frivolous or vexatious motions or amendments, and other restrictions on debate of government bills at second reading, thus making it almost impossible for opposition parties to resort to similar tactics.